THE REPORT FROM WASHINGTON

Letter to professor Edwin Chemerinsky

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

First, exceeding gratitude to you for your prompt reply to my letter commenting on your interesting article, “Juvenile Life-without-parole,” published last August in the ABA Law Journal. Honestly, I thought you would be like most of your other colleagues that I’ve written to over the past 30 years – that you would read my letter, deduce that it was written by a conservative – a black conservative at that – and ipso facto dismiss my comments (and the need for any response) out of hand. But you didn’t take that course; therefore, allow me to extend my sincerest gratitude to you, professor Chemerinsky, for accepting my invitation to dialogue.

Second, to answer your question: Is it that you disagree with my statement of the holding of the case or that you disagree with the Court’s opinion? It is both, because your ABA article essentially agrees with the Supreme Court holding in the Miller case, correct? I also know from reading your writings and casebook on Constitutional Law that you are a doctrinaire liberal/progressive jurist, ergo, since you are a consensus legal academic you would also embrace the primary tenants of Positive Law, i.e., legality and morality are separate, or that man-created law is the center of all things. Therefore, I deduced (but read your ABA article to be sure) that you, the majority of our academic colleagues in America’s law schools and universities and, most tragically, the majority of the members of the Supreme Court (including the so-called “conservative wing”) would not even entertain the obvious questions:

Can the juvenile justice system genie once outside the bottle (i.e., created specifically as a trans-constitutional system) be put back inside the bottle (i.e., brought back within legitimate constitutional strictures)?

In other words, must the entire juvenile justice system, out of necessity and fidelity to the Rule of Law, be dismantled as a classical form of the “fruit of the poisonous tree” doctrine and a new constitutional system comprehensively addressing youth crime be put in its place?

With all due respect, professor Chemerinsky, how can you agree with the Court’s 5-4 decision that there cannot be a mandatory life sentence without parole for homicides committed by juveniles? Isn’t the Court’s ruling in Miller tantamount to giving America’s endemic youth criminal class a key to their own jail cells? Perhaps my meta-analysis of juvenile law is incongruent with the macro/consensus view of your ABA article, the law Academy, and the Court. In other words, I am arguing at the sub-ground level (law as it ought to be), while you and the Miller Court majority are arguing from the tree tops (law as it is).

Professor Chemerinsky, I know firsthand about the utter failure of the liberal/progressive welfare state including its juvenile justice system. I was born in the ghettos of Detroit amongst endemic crime, ignorance, violence, prostitution, pathology and despair. I came of age during the Detroit riots of 1967. I personally am aware of youth crime and that the juvenile justice system offers no systemic solutions to those existential societal problems, which must be solved by morality, not policy.

While I have read much of your writings, I wonder have you ever read any of my many writings, particularly on the subject of juvenile law? (Probably not since few scholars read the works of blacklisted conservative writers.) These writings include legal scholarship I have painstakingly chronicled over many years of research and conclusions on this subject as demonstrated in Chapter 2 of my 2002 book: an apologetic against Positive Law and the naturalistic/atheistic worldview titled “The Inseparability of Law and Morality”; also in two major law review articles on juvenile law (published on two different continents – Europe [Romania] and the U.S.) in 2010 and 2011; and perhaps a half dozen smaller essays published in the GlobalPolitician.com and WND.com, which will also be published in my upcoming two-volume collection of essays, “The Progressive Revolution” (University Press of America, 2012). Those books should be published by years’ end.

How can the juvenile justice legal system logically be considered constitutional when at its founding in 1899 it was purposely conceived to function outside U.S. constitutional law? This juvenile justice system sham was affirmed by subsequent landmark cases like Kent (1966) and Gault (1967) where in my opinion those Court decisions made a pathetic and retroactive attempt to whitewash 70 years of unconstitutional juvenile law jurisprudence amounting to the untenable position that all juvenile law cases after Kent and Gault would be seamlessly integrated into lawful constitutional jurisprudence. The Miller case proves to me (and you), not so!

Your telling statement, professor Chemerinsky, which you restated in your last email (“… I also think that the implications are complicated and likely to be litigated for years to come – such as whether the decision applies retroactively and what procedures [i.e., penalty hearings] will be needed,”) contradict such an unspoiled transition post-Kent, post-Gault and to an even greater degree, post-Miller.

On another but related point, for over 20 years I have been a blacklisted legal scholar for daring to write and speak out against what I call this existential and entrenched “Progressive Revolution” dominating culture, society and within the Academy, but specifically the law Academy. My oeuvre has not earned me many friends in the Academy. Goebbels said, “Truth is the enemy of the State.” Nevertheless, like you, professor Chemerinsky, I was taught the classical understanding of the Liberal Arts Academy: that all academic disciplines of intellectual thought, including philosophy, ideology and what the Germans called Weltanschauung (worldview), would be not only welcomed, but great scholars of all disciplines should be sought out throughout the world for the best universities so that the Academy, where all young people are taught to aspire to attend, could embrace that implicit promise from society – that the Academy would NOT be an Orwellian propaganda factory filled with groupthink and Democrat Socialist propaganda, but a repository of ideological balance … where all ideas can equally compete in what Justice Oliver Wendell Holmes called “the marketplace of ideas,” or what I prefer to call “the arena of ideas.”

Ideological balance inside the Academy in 2012? To quote a line from the 2006 dystopian movie thriller “V for Vendetta,” Bollix!

In conclusion, professor Chemerinsky, I hope that we can continue our dialogue on why the overwhelming majority of law academics are, like you, against mandatory life sentences for juveniles convicted of homicides, yet fail to ask the obvious question: Is juvenile law a legitimate constitutional system of law?

If you desire to understand why not one legal scholar, not one member of the Supreme Court (even the conservative minority in Miller), not one member of the media, Congress, President Obama, not one liberal intellectual ever thought to question the constitutionality of the juvenile justice system, I’ll tell you. Because of this entrenched ideological groupthink that has plagued the American Academy and society for over 100 years, which has increased exponentially since the early 1960s: this Leviathan having mandated a Darwinian evolutionary approach to academics, a Positive Law jurisprudence and a naturalistic/atheistic worldview that has replaced the former normative, Christian worldview based on a foundation of Natural Law and the original intent of the constitutional framers.

If you doubt my theory, just consider: Who were your most beloved teachers in law school? In college? On the courts? What was their Weltanschauung? How many conservative jurists were on your list? What ideology do most of your law school colleagues hold? Do this simple test on members of your faculty at USC and other law schools, colleges and universities, and only then you will begin to understand why you and your colleagues are where you are and why I am where I am … ignored, diminished, mocked and blacklisted. This is not justice. This is not fairness. This is not what Dr. Martin Luther King and the civil rights movement gave their lives to secure for black Americans, for all Americans. Leftist ideological hegemony inside the Academy has prevented me from my pursuit of being a Constitutional Law professor and has betrayed Jefferson’s promise to me, to all lovers of liberty, in his Declaration of Independence – “Life, Liberty and the pursuit of Happiness.”

If you have time to reply, please read my Manifesto on my blog (it is brief) and put yourself in my shoes. I promise that this exercise in empathy will shed much light against the cloistered, Alice-in-Wonderland life most academics live in 2012 – so detached, so smug in their ignorance, so successful in their deconstruction of Western civilizational structures of society, so far from the reality of truth, so utterly removed from real moral-based solutions to society’s existential problems, who would, for example, embrace the feckless, anti-critical-thinking drivel published by a college professor in a recent New York Times article, “Fighting Over God’s Image.” This “article” makes the outrageous moral-equivalency argument that Muslim religious fanaticism exploding throughout the Middle East, Asia and Africa today is reflected throughout American Christian religious history.

Peace, Ellis Washington

Postscript

Sent: Thu 9/27/2012 8:06 PM
To: Ellis Washington

Dear Mr. Washington,

I think it is very important to separate descriptive statements from normative arguments. My ABA Journal piece was meant simply to describe what the Court said and identify some of the implications. I was not arguing in favor or against in that piece. Thus, I was surprised by your statement that you disagreed with my statement that the Court held that there cannot be mandatory sentences of life without parole for homicides committed by juveniles. That is what the Court held.

You are wrong that I agree with the Court. I do not think the Court went nearly far enough. I believe it should have held that there never can be a sentence of life without parole imposed on a juvenile. I believe that the Court could have come to this conclusion without holding the entire juvenile justice system unconstitutional.